Ruise v. Secretary, Florida Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ANTHONY RUISE,

Petitioner,

v. Case No. 3:17-cv-233-J-34JRK

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Anthony Ruise, an inmate of the Florida penal system, initiated this

action with the assistance of counsel on February 27, 2017, by filing a Petition for Writ of

Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1). In the Petition, Ruise

challenges a 2010 state court (Duval County, Florida) judgment of conviction for sexual

battery. Ruise raises eight grounds for relief. See Petition at 5-27.1 Respondents have

submitted a memorandum in opposition to the Petition. See Response to Petition for Writ

of Habeas Corpus (Response; Doc. 21) with exhibits (Resp. Ex.). Ruise filed a brief in

reply. See Reply to the State’s Response to the Petition for Writ of Habeas Corpus (Reply;

Doc. 23). This case is ripe for review.

1 For purposes of reference, the Court will cite the page number assigned by the

Court’s electronic docketing system.

II. Relevant Procedural History

On October 13, 2008, the State of Florida (State) charged Ruise by way of

Information with one count of sexual battery. Resp. Ex. B1 at 13. Ruise proceeded to a

jury trial, at the conclusion of which the jury found Ruise guilty as charged, with a specific

finding that Ruise coerced the victim to submit by threatening to use force or violence

likely to cause serious personal injury and the victim reasonably believed that Ruise had

the ability to execute the threat. Resp. Ex. B3 at 361. On May 7, 2010, the circuit court

sentenced Ruise to a term of incarceration of thirty years in prison and adjudicated him a

sexual predator. Id. at 395-96.

Ruise appealed his judgment and sentence to Florida’s First District Court of

Appeal (First DCA). Id. at 415. In his initial brief, Ruise contended that (1) the circuit court

erred in allowing the State to question him as to the number of his prior convictions for

driving under the influence (DUI) and (2) the State made improper arguments to the jury.

Resp. Ex. B10. The State filed an answer brief. Resp. Ex. B11. On September 8, 2011,

the First DCA per curiam affirmed the judgment and sentence without a written opinion,

Resp. Ex. B12, and issued the Mandate on September 26, 2011. Resp. Ex. B13.

On August 17, 2012, Ruise filed a pro se motion for postconviction relief pursuant

to Florida Rule of Criminal Procedure 3.850. Resp. Ex. C2 at 276. On September 23,

2013, Ruise, with the assistance of counsel, filed an amended motion for postconviction

relief pursuant to Rule 3.850 (Rule 3.850 Motion). Resp. Ex. C1 at 1-41. Ruise raised the

following claims in his Rule 3.850 Motion, alleging counsel was ineffective for: (1) failing

to impeach the victim with prior inconsistent statements; (2) failing to object to a Brady2

2 Brady v. Maryland, 373 U.S. 83 (1963).

violation; (3) opening the door to the introduction of Ruise’s misdemeanor DUI

convictions; (4) failing to object to the introduction of collateral crime evidence; (5) failing

to object to improper closing arguments; (6) failing to object to a jury instruction; and (7)

failing to call a witness. Id. Ruise also raised an eighth ground for relief, which alleged the

cumulative effect of counsel’s deficient performance prejudiced him. Id. The circuit court

denied the Rule 3.850 Motion on November 12, 2015. Resp. Ex. C2 at 276-300. On

November 1, 2016, the First DCA per curiam affirmed the denial of the motion without a

written opinion, Resp. Ex. C8, and issued the Mandate on November 17, 2016. Resp. Ex.

C9.

III. One-Year Limitations Period

This proceeding was timely filed within the one-year limitations period. See 28

U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to establish the

need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d

1057, 1060 (11th Cir. 2011). “In deciding whether to grant an evidentiary hearing, a

federal court must consider whether such a hearing could enable an applicant to prove

the petition’s factual allegations, which, if true, would entitle the applicant to federal

habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t

of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016), cert. denied, 137 S. Ct. 2245 (2017).

“It follows that if the record refutes the applicant’s factual allegations or otherwise

precludes habeas relief, a district court is not required to hold an evidentiary hearing.”

Schriro, 550 U.S. at 474. The pertinent facts of this case are fully developed in the record

before the Court. Because the Court can “adequately assess [Ruise’s] claim[s] without

further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an

evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a

state prisoner’s federal petition for habeas corpus. See Ledford v. Warden, Ga.

Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137

S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure that federal habeas relief

functions as a guard against extreme malfunctions in the state criminal justice systems,

and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38

(2011) (quotation marks omitted)). As such, federal habeas review of final state court

decisions is “‘greatly circumscribed’ and ‘highly deferential.’” Id. (quoting Hill v. Humphrey,

662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).

The first task of the federal habeas court is to identify the last state court decision,

if any, that adjudicated the claim on the merits. See Marshall v. Sec’y, Fla. Dep’t of Corr.,

828 F.3d 1277, 1285 (11th Cir. 2016). The state court need not issue a written opinion

explaining its rationale in order for the state court’s decision to qualify as an adjudication

on the merits. See Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s

adjudication on the merits is unaccompanied by an explanation, the United States

Supreme Court has instructed:

[T]he federal court should “look through” the unexplained

decision to the last related state-court decision that does

provide a relevant rationale. It should then presume that the

unexplained decision adopted the same reasoning.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be rebutted by

showing that the higher state court’s adjudication most likely relied on different grounds

than the lower state court’s reasoned decision, such as persuasive alternative grounds

that were briefed or argued to the higher court or obvious in the record it reviewed. Id. at

1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars relitigation

of the claim unless the state court’s decision (1) “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States;” or (2) “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98. The Eleventh Circuit describes the limited

scope of federal review pursuant to § 2254 as follows:

First, § 2254(d)(1) provides for federal review for claims of

state courts’ erroneous legal conclusions. As explained by the

Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct.

1495, 146 L.Ed.2d 389 (2000), § 2254(d)(1) consists of two

distinct clauses: a “contrary to” clause and an “unreasonable

application” clause. The “contrary to” clause allows for relief

only “if the state court arrives at a conclusion opposite to that

reached by [the Supreme] Court on a question of law or if the

state court decides a case differently than [the Supreme]

Court has on a set of materially indistinguishable facts.” Id. at

413, 120 S. Ct. at 1523 (plurality opinion). The “unreasonable

application” clause allows for relief only “if the state court

identifies the correct governing legal principle from [the

Supreme] Court's decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for claims of

state courts’ erroneous factual determinations. Section

2254(d)(2) allows federal courts to grant relief only if the state

court’s denial of the petitioner’s claim “was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1), which

imposes a burden on the petitioner to rebut the state court’s

factual findings “by clear and convincing evidence.” See Burt

v. Titlow, 571 U.S. ---, ---, 134 S. Ct. 10, 15, 187 L.Ed.2d 348

(2013); accord Brumfield v. Cain, 576 U.S. ---, ---, 135 S. Ct.

2269, 2282, 192 L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual determination is

not unreasonable merely because the federal habeas court

would have reached a different conclusion in the first

instance.’”[3] Titlow, 571 U.S. at ---, 134 S. Ct. at 15 (quoting

Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct. 841, 849, 175

L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert. denied, 137 S. Ct. 2298

(2017). Also, deferential review under § 2254(d) generally is limited to the record that was

before the state court that adjudicated the claim on the merits. See Cullen v. Pinholster,

563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1)’s “requires an examination

of the state-court decision at the time it was made”).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for prisoners

whose claims have been adjudicated in state court.” Burt v. Titlow, 134 S. Ct. 10, 16

(2013). “Federal courts may grant habeas relief only when a state court blundered in a

manner so ‘well understood and comprehended in existing law’ and ‘was so lacking in

justification’ that ‘there is no possibility fairminded jurists could disagree.’” Tharpe, 834

F.3d at 1338 (quoting Richter, 562 U.S. at 102-03). This standard is “meant to be” a

“difficult” one to meet. Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s

3 The Eleventh Circuit has described the interaction between § 2254(d)(2) and §

2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1286 n.3 (11th

Cir. 2016), cert. denied, 137 S. Ct. 1103 (2017).

claims were adjudicated on the merits in the state courts, they must be evaluated under

28 U.S.C. § 2254(d).

B. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective assistance of

counsel. That right is denied when a defense attorney’s performance falls below an

objective standard of reasonableness and thereby prejudices the defense.” Yarborough

v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521

(2003), and Strickland v. Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person challenging a

conviction must show that “counsel’s representation fell below

an objective standard of reasonableness.” [Strickland,] 466

U.S. at 688, 104 S. Ct. 2052. A court considering a claim of

ineffective assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range” of

reasonable professional assistance. Id., at 689, 104 S. Ct.

2052. The challenger’s burden is to show “that counsel made

errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must demonstrate “a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id., at 694, 104 S. Ct.

2052. It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.” Id., at

693, 104 S. Ct. 2052. Counsel’s errors must be “so serious as

to deprive the defendant of a fair trial, a trial whose result is

reliable.” Id., at 687, 104 S. Ct. 2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of any iron-

clad rule requiring a court to tackle one prong of the Strickland test before the other.”

Ward, 592 F.3d at 1163. Since both prongs of the two-part Strickland test must be

satisfied to show a Sixth Amendment violation, “a court need not address the performance

prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Id. (citing

Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in Strickland: “If it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,

which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at

697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation is a most

deferential one.” Richter, - U.S. at -, 131 S. Ct. at 788. But

“[e]stablishing that a state court’s application of Strickland was

unreasonable under § 2254(d) is all the more difficult. The

standards created by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review is

doubly so.” Id. (citations and quotation marks omitted). “The

question is not whether a federal court believes the state

court’s determination under the Strickland standard was

incorrect but whether that determination was unreasonable -

a substantially higher threshold.” Knowles v. Mirzayance, 556

U.S. 111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)

(quotation marks omitted). If there is “any reasonable

argument that counsel satisfied Strickland’s deferential

standard,” then a federal court may not disturb a state-court

decision denying the claim. Richter, - U.S. at -, 131 S. Ct. at

788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v. Mirzayance,

556 U.S. 111, 123 (2009). In other words, “[i]n addition to the deference to counsel’s

performance mandated by Strickland, the AEDPA adds another layer of deference--this

one to a state court’s decision--when we are considering whether to grant federal habeas

relief from a state court’s decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.

2004). As such, “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

Ruise alleges that his trial counsel was ineffective for failing to impeach the victim’s

trial testimony with her deposition testimony. Petition at 5-7. Specifically, he contends

counsel should have impeached the victim’s trial testimony that she had $50, $8 of which

she used on food, with her deposition testimony that she did not have money for a taxi.

Id. at 5-6. Also, Ruise asserts the victim’s trial testimony that Ruise was following her on

the side of the road but did not touch her by the time a woman in a car had stopped to

check on her should have been impeached with her deposition testimony that Ruise had

grabbed her shoulder and she pushed him away when the car stopped. Id. at 6. Ruise

further notes that in her deposition, the victim stated she did not recall “any of the key

events that occurred” that night, which counsel should have used to impeach her trial

testimony that provided specific details about the sequence of events. Id. According to

Ruise, this case came down to a credibility determination between Ruise and the victim

and counsel’s failure to impeach the victim and impugn her credibility prejudiced the

outcome of the trial. Id. at 6-7.

Ruise raised a similar claim in his Rule 3.850 Motion. Resp. Ex. C1 at 11-17. The

circuit court denied this claim, explaining:

This Court is unpersuaded the outcome of Defendant’s

trial would have been different had counsel impeached the

victim as Defendant now suggests. First, in counsels’ Motion

for New Trial, upon which the trial court held a full hearing,

counsel argued the trial court erred in sustaining numerous

objections by the State during the victim’s testimony. One of

the issues counsel raised involved trial court error for

sustaining the State’s objection to the victim’s testimony about

the woman in the car who asked the victim if she needed help.

It is noteworthy these issues were reviewed on appeal

through Defendant’s Statement of Judicial Acts to be

Reviewed. As noted supra, the First DCA subsequently

affirmed Defendant’s conviction.

Second, throughout counsel’s entire cross-

examination of the victim, he exhaustively questioned her

about her alcohol consumption during the night of the incident.

Counsel specifically elicited from the victim that she

consumed at least ten alcoholic beverages while she

socialized at a nightclub before the incident. Such questioning

served to show the jury they should not believe the victim’s

testimony because she was intoxicated and therefore her

memory, and her ability to remember the events, was

distorted and inaccurate.

Counsel further questioned the victim about her ability

to remember the full names of her friends with whom she

socialized, but she could not recall the full names of her

roommates who allowed her to “crash” at their apartment rent-

free for months. Counsel also elicited from the victim that she

once knew a white man named Anthony, and Defendant is a

“light-colored black man” named Anthony. In addition, counsel

asked the victim if she previously told investigators someone

followed her to Denny’s, and she testified she did not tell

investigators such information. Finally, the record indicates

counsel did question the victim about the sequence of when

the vehicle stopped and the woman asked her if she needed

a ride, and the victim testified in accordance with her

testimony during direct examination.

As such, the record reflects counsel did impeach the

victim’s credibility, albeit on several different, more favorable

grounds for impeachment than those suggested by

Defendant. This Court finds counsel’s impeachment of the

victim on these different grounds served the same purpose as

impeachment of her on the basis suggested by Defendant.

See Ellis, 622 So. 2d at 996 n.3.[4] Through his questioning,

counsel attempted to show the jury that because the victim

demonstrated she had a poor memory and drank a large

quantity of alcohol during the night of the incident, the jury

should not find credence in her testimony. Accordingly, in light

of counsel’s impeachment of the victim on other grounds, this

Court cannot find the jury would have completely discredited

the victim’s version of events had counsel impeached her

4 Ellis v. State, 622 So. 2d 991 (Fla. 1993).

based on the grounds suggested by Defendant. This Court

finds Defendant has failed to demonstrate prejudice in this

respect as required by Strickland, and Ground One is denied.

Resp. Ex. C2 at 279-82 (record citations omitted). The First DCA affirmed the denial of

this claim without a written opinion. Resp. Exs. C8; C9.

To the extent that the First DCA decided the claim on the merits,5 the Court will

address the claim in accordance with the deferential standard for federal court review of

state court adjudications. After a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to clearly

established federal law, did not involve an unreasonable application of clearly established

federal law, and was not based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceedings. Thus, Ruise is not entitled to relief

on the basis of this claim.

Even if the state appellate court’s adjudication of the claim is not entitled to

deference, this claim is without merit. A review of the victim’s deposition reflects that when

the defense counsel asked if calling a cab was an option, the victim stated “I didn’t have

the money for a cab. . . . It’s like $7 just to go down the street. . . . I could have kept the

$7 and ate a burger.” Resp. Ex. B2 at 250. However, several questions later in the

deposition, when counsel asked her if she paid for her meal at Denny’s after leaving the

night club, the victim stated she paid for her own meal with a $50 bill and received two

$20 bills in return. Id. at 257-58. Notably, at trial, the victim testified she paid her bill at

Denny’s with a $50 bill. Resp. Ex. B4 at 47. The victim further testified during her

5 Throughout this order, in looking through the appellate court’s per curiam

affirmance to the circuit court’s “relevant rationale,” the Court presumes that the appellate

court “adopted the same reasoning.” Wilson, 138 S. Ct. at 1194.

deposition that the remaining $40 was needed to repay her roommate and buy groceries.

Resp. Ex. B2 at 258. Reading the victim’s deposition testimony in context, it appears as

if she stated she did not have money for a cab because she did not want to waste it on a

cab when she could get food and that the remaining cash was earmarked to repay a debt

and buy groceries. Accordingly, had Ruise’s counsel attempted to impeach the victim with

her deposition testimony as Ruise suggests, the State would have been able to

rehabilitate the victim with her other statements during the deposition that are in

conformance with her trial testimony. As such, there is no reasonable probability the

outcome of the trial would have been different had counsel impeached the victim on this

issue.

Concerning the interaction with the vehicle, in her deposition, the victim stated

Ruise grabbed her shoulder prior to the good Samaritan stopping her car. Id. at 269, 273-

74. But at trial, she testified Ruise grabbed her shoulder immediately after the car left.

Resp. Ex. B4 at 51. The Court finds this small temporal discrepancy would not have

seriously impacted the victim’s credibility because the core of the victim’s account of that

night remained the same. A driver pulled over to the side of the road to ask if the victim

was alright or needed help, the victim stated Ruise was bothering her and asked the driver

to call the police, the driver apparently did not call the police, and Ruise sexually battered

the victim. Id. at 48-60. These operative facts remained the same; therefore, the Court

finds there is no reasonable probability the outcome of the trial would have been different

had counsel impeached the victim in this manner.

As to Ruise’s contention that the victim could not correctly recall the entire

sequence of events that night, her deposition reflects that she gave detailed descriptions

of that night and the incident, from why she left her apartment, to the specific drinks she

consumed at the club, to who was present at various places, and how Ruise sexually

battered her. Resp. Ex. B2 at 191-358. Accordingly, the record refutes Ruise’s allegations

to the extent he claims the victim’s deposition testimony would have highlighted her

inability to remember events.

Finally, the record reflects that trial counsel thoroughly cross-examined the victim,

albeit on different matters than those Ruise alleges here. Resp. Ex. B4 at 69-92. For

instance, counsel questioned the victim about her mental health, the amount of alcohol

she consumed, a prior crime involving dishonesty, her inability to remember the names

of friends and roommates, and with prior inconsistent statements from her deposition. Id.

at 77-78, 82-88. As such, counsel did impugn the credibility of the victim. However, the

State was even more successful at impugning Ruise’s credibility, which is also why this

Court now concludes there is no reasonable probability the outcome of the trial would

have been different had counsel actually impeached the victim in the manner Ruise puts

forth here.

The record reflects that when a detective first interviewed Ruise, he denied

knowing the girl, denied raping anyone, and stated he had sex with only one Caucasian

woman around that time, a former girlfriend. Resp. Ex. B5 at 282-86. After being

confronted with the fact that his semen was found in the victim, Ruise still denied the rape

but changed his story, saying he had consensual sex with a lot of Caucasian women who

he couldn’t remember because he was drunk. Id. at 287-98. However, at trial, Ruise

stated he did remember the victim, albeit only her first name, that she was a prostitute he

picked up after driving home from work, and they had consensual sex in his apartment.

Id. at 338-43, 348-49. On cross-examination though, the State impeached Ruise with a

pro se letter he filed with the circuit court, in which Ruise detailed another version of

events. Id. at 364-65. In his letter, Ruise maintained that he was driving home from a long

night of drinking with friends, not from work, and spotted the victim walking. Id. He pulled

over, let her in his car, and she asked if he was looking for a date, to which Ruise

responded he was not opposed to it. Id. They agreed upon a price for sex and went to his

apartment and consummated the deal. Id. In sum, the jury heard all three of Ruise’s

varying explanations for what happened that night, all of which materially contradict each

other. Based on this record, the State substantially impugned Ruise’s credibility to the

extent that the Court is confident even if counsel had confronted the victim with her

deposition testimony, Ruise would still have been convicted. Accordingly, the Court finds

Ruise has failed to demonstrate deficient performance or prejudice; therefore, the relief

he seeks in Ground One is due to be denied.

B. Ground Two

In Ground Two, Ruise avers that his trial counsel was ineffective for failing to object

to a Brady violation. Petition at 8-11. Ruise contends that the State withheld the jeans

and jacket the victim wore the night of the sexual battery. Id. Noting that the victim alleged

she was raped on the ground in a grassy, dirt area, Ruise asserts that had the jeans and

jacket been collected as evidence, they would have demonstrated that there was no

evidence of grass or debris on the articles of clothing, thereby refuting the victim’s story.

Id. at 8. According to Ruise, the nurse at the Sexual Assault Response Center (SARC)

was required to take the jeans and jacket into evidence but failed to do so and the

responding officers failed to call out an evidence technician and advise the victim she

should turn over the clothing. Id. at 8-10. Ruise asserts that these failures represented

violations of the Jacksonville Sheriff’s Office’s (JSO) standard operating procedure in

sexual battery cases. Id. at 10-11.

In his Rule 3.850 Motion filed with the circuit court, Ruise raised a substantially

similar claim. Resp. Ex. C1 at 17-20. The circuit court denied this claim, writing:

Here, this Court finds Defendant has failed to satisfy

the second Brady prong, specifically, the State suppressed

the evidence at issue, either willfully or inadvertently.

Specifically, Defendant has failed to demonstrate SARC is an

extension of the State and, thus, a viable Brady violation can

stand because of SARC employees’ actions. Upon research

and further examination, this Court has similarly been unable

to find any such authority. As such, this Court finds SARC

employees are not law enforcement and thus are not State

actors, as contemplated by Brady.

Assuming arguendo SARC was an extension of the

State or law enforcement, Defendant’s claim still fails. First,

the victim testified during trial that she gave only her bathing

suit and tank top to the nurse at SARC. Second, Ms. Choulat,

the nurse who examined the victim at SARC and collected

evidence for a sexual assault kit, testified during the

evidentiary hearing. Ms. Choulat recalled the victim wore a

bathing suit, a t-shirt, and a jacket, and she did not notice any

plant matter on the victim’s clothing. Additionally, Ms. Choulat

stated, nothing stood out to her about the victim’s jacket. Ms.

Choulat noted that when the victim undressed on the standard

brown paper SARC used to preserve evidence, Ms. Choulat

did not notice any particles or matter fall from the victim’s

clothing such as leaves, plant matter, or the like. Ms. Choulat

further testified that if any such particles or matter fell from the

victim’s clothing, the evidence would have been collected,

rolled into a paper roll, and sent to the Florida Department of

Law Enforcement (“FDLE”) for examination/testing. If such

evidence did fall onto the paper, Ms. Choulat would have

noted such in her report. Similarly, Ms. Choulat testified that if

she saw any “gross matter” on the victim’s clothing, she would

have encouraged the victim to allow SARC to keep the

clothing for further examination.”

Ms. Choulat stated police officers from the Jacksonville

Sheriff’s Office (“JSO”) or members of law enforcement did

not direct her to collect certain items of evidence from the

victim. Ms. Choulat explained that SARC does not force a

victim to give up his or her clothing if the victim does not want

to provide the clothing. She further testified that, here, the

victim did not permit SARC or Ms. Choulat to keep her jacket

and jeans. Therefore, Ms. Choulat testified, she did not collect

the victim’s jacket and jeans, and SARC was unable to

provide these items to the appropriate law enforcement

authorities. Instead, SARC sent only the victim’s bathing suit

and t-shirt to FDLE for testing.

Mr. Bateh similarly testified during the evidentiary

hearing. He recalled the victim did not provide her pants or

jacket to Ms. Choulat at SARC. Thus, Mr. Bateh explained, he

did not conduct an independent investigation as to where the

jacket and pants were located because the depositions and

discovery indicated the items were not turned over or

collected. Mr. Bateh stated he does not know how the items

could have been tested if they were “not there” and not in the

State’s possession. Mr. Bateh also explained that since a

significant amount of time had passed from when the crime

occurred to the time of trial, it is likely the jacket and jeans

could not be found or tested. As such, Mr. Bateh concluded,

because he did not believe a Brady violation occurred, he did

not object or move for dismissal on such grounds.

Defendant also testified as to this point. He stated

during trial, he questioned Mr. Bateh about the location of the

victim’s jacket and jeans. Defendant asserted Mr. Bateh

responded “they didn’t have it.”

In view of the foregoing, this Court finds counsel was

not ineffective for failing to object to a Brady violation or file a

motion to dismiss, when he did not believe a meritorious claim

of a Brady violation existed. See Willacy v. State, 967 So. 2d

131, 140 (Fla. 2007) (citing Maxwell v. Wainwright, 490 So.

2d 927, 932 (Fla. 1986) (finding “counsel is not ineffective for

failing to make a futile objection”)); Branch v. State, 952 So.

2d 470, 476 (Fla. 2006) (holding counsel cannot be ineffective

for failing to file motion that would have been properly denied).

As such, Ground Two is denied.

Resp. Ex. C2 at 282-86 (record citations omitted). The First DCA affirmed the denial of

this claim without a written opinion. Resp. Exs. C8; C9.

To the extent that the First DCA decided the claim on the merits, the Court will

address the claim in accordance with the deferential standard for federal court review of

state court adjudications. After a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to clearly

established federal law, did not involve an unreasonable application of clearly established

federal law, and was not based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceedings. Thus, Ruise is not entitled to relief

on the basis of this claim.

Even if the state appellate court’s adjudication of the claim is not entitled to

deference, the claim in Ground Two is meritless. The United States Supreme Court

decision in Brady governs a state’s withholding of exculpatory evidence. To establish a

Brady claim, a petitioner must demonstrate: “(1) that the prosecution suppressed

evidence (2) that was favorable to the [petitioner] or exculpatory and (3) that the evidence

was material.” United States v. Blasco, 702 F.2d 1315, 1327 (11th Cir. 1983) (citation

omitted). Notably, the holding in Brady applies only to information in the possession of

the prosecutor or anyone under his authority that defense counsel could not have

obtained by exercising reasonable diligence. United States v. Naranjo, 634 F.3d 1198,

1212 (11th Cir. 2011); see also United States v. Griggs, 713 F.2d 672, 674 (11th Cir.

1983) (“Where defendants, prior to trial, had within their knowledge the information by

which they could have ascertained the alleged Brady material, there is no suppression by

the government.”). Furthermore, “a Brady claim fails when it is only speculative that the

materials at issue would have led to exculpatory information.” Wright v. Sec’y Fla. Dep’t

of Corr. 761 F.3d 1256, 1281 (11th Cir. 2014).

Initially, the Court finds that Ruise’s Brady claim fails because he speculates that

the jean and jacket would lead to exculpatory information. Ruise assumes the jacket and

jeans would have been in such a state as to contradict the victim’s story, but because it

was not taken into custody there is no way to know what evidence may or may not have

been present on those articles of clothing. Therefore, his claim that this evidence was

exculpatory is speculative and cannot form the basis of a Brady violation. See id.

Additionally, counsel elicited testimony through the cross-examination of Lila Choulat, the

examining nurse at SARC, that the bathing suit and t-shirt the victim turned over were not

torn and she did not see stains nor significant foreign material. Resp. Ex. B 4 at 140-41.

Thus, the jury heard and reviewed evidence of much the same matter that Ruise now

posits would have helped him gain acquittal. The jury also heard evidence that the victim

suffered no bruises, scratches, abrasions, lacerations, or signs of strangulation, and the

nurse’s report reflected no evidence of trauma to the victim’s vagina or body. Id. at 142-

145. All of which, the defense used to argue the victim’s story was not credible. Resp. Ex.

B6 at 427-28, 430. However, the jury did not acquit Ruise even when shown that evidence

and given that argument. Therefore, the Court finds this evidence was not material and

there is no reasonable probability the outcome of the trial would have been different had

it been introduced.

Moreover, the record reflects that neither Choulat nor law enforcement officials

actively withheld or hid the existence of the jeans and jacket. At trial, the nurse testified

sometimes victims do not turn over certain articles of clothing and they cannot force

somebody to give them up. Resp. Ex. B4 at 141-42. At the evidentiary hearing on Ruise’s

Rule 3.850 Motion, Choulat testified that they collect as much clothing as the victim allows

them to collect, but, in this case, the victim did not want give up her jacket. Resp. Ex. C4

at 18, 21-22, 27-29, 31. Accordingly, the State did not obtain this evidence because it was

SARC policy not to physically seize clothing from a victim over his or her objections. The

Court also notes that the victim had the same jacket with her at the deposition she took

in this case and showed it to Ruise’s attorney. Resp. Ex. B2 at 235-36. As such, the Court

does not view this as suppression of evidence and Ruise has failed to establish the first

prong of a Brady violation. Ruise’s failure to demonstrate the presence of a Brady

violation, renders his claim of ineffective assistance of counsel meritless. See Diaz v.

Sec’y for the Dep’t of Corr., 402 F.3d 1136, 1142 (11th Cir. 2005) (holding counsel cannot

be ineffective for failing to raise a meritless argument); Bolender v. Singletary, 16 F.3d

1547, 1573 (11th Cir. 1994) (noting that “it is axiomatic that the failure to raise

nonmeritorious issues does not constitute ineffective assistance.”). Based on the

foregoing, the claim in Ground Two is due to be denied.

C. Ground Three

As Ground Three, Ruise asserts that his counsel was ineffective for opening the

door to Ruise’s misdemeanor DUI convictions. Petition at 13-14. According to Ruise, he

testified at trial he was a two-time convicted felon, but the nature of those felonies was

not introduced. Id. at 13. However, trial counsel “almost immediately questioned Petitioner

further about his lifestyle and convictions,” which resulted in an exchange where Ruise

commented about DUIs and counsel followed up with questions concerning the nature of

his prior convictions. Id. at 13-14. Ruise maintains this allowed the prosecutor to question

him in detail about his prior DUI convictions and substantially hurt his credibility in the

eyes of the jury. Id.

Ruise raised this claim in his Rule 3.850 Motion. Resp. Ex. C1 at 20-23. In denying

this claim, the circuit court stated, in pertinent part:

As to the merits of Defendant’s claim, Mr. Bateh

testified extensively during the evidentiary hearing about how

he prepared Defendant to testify if Defendant chose to do so.

Mr. Bateh recalled that, before, trial, he and Defendant

discussed Defendant testifying on his own behalf “[m]any

times.” Mr. Bateh and co-counsel met with Defendant and

questioned Defendant as if he was on the stand testifying.

Defendant testified during the evidentiary hearing that Mr.

Bateh prepared him to testify just before his testimony the

second day of trial. Defendant stated during direct

examination that Mr. Bateh “told [him] what he needed to say”

while he testified. During cross-examination, however,

Defendant testified Mr. Bateh never discussed what he should

say during his testimony, but Mr. Bateh knew what he would

say.

During the evidentiary hearing, Mr. Bateh discussed

his conversation with Defendant about the State’s ability to

elicit information about Defendant’s “two felony convictions for

DUIs, which stemmed from two misdemeanor DUIs. The

discussion was is [sic] that he would ask specifically how

many and that is it.” In particular, Mr. Bateh stated, “[t]he way

that Mr. Ruise and I discussed it, there was never going to be

any discussion of DUIs. It was just the two felony convictions.”

Defendant testified during the evidentiary hearing that Mr.

Bateh told him to answer truthfully about having two felony

DUIs, and then the questions should have ceased. Defendant

stated Mr. Bateh affirmed the evidence about Defendant’s

misdemeanor DUIs would not be introduced. Defendant

testified that, in preparing him to testify, Mr. Bateh never

advised him about “opening the door” to his misdemeanor

DUIs.

Mr. Bateh recalled that, during Defendant’s trial

testimony, Defendant asked Mr. Bateh if he wanted

Defendant to elaborate on his prior felony convictions, and Mr.

Bateh responded, “Absolutely not. No.” Indeed, the trial record

shows counsel did not elicit the information at issue in

response to a question but, rather, Defendant volunteered it.

The trial record shows Mr. Bateh asked Defendant if he had

been convicted of two felonies in the past, and Defendant

affirmed he had. Defendant then asked Mr. Bateh if Mr. Bateh

would like Defendant to elaborate on his prior felony

convictions, and Mr. Bateh stated, “No, that’s all right.”

Defendant contested this occurred during trial.

In response to counsel’s subsequent question during

trial about Defendant’s lifestyle during the time of the instant

incident, Defendant stated “I drank.” Counsel asked

Defendant if drinking was a bad thing, and Defendant stated

“It is when, you know, you get DUI’s [sic] and things.” Mr.

Bateh explained during the evidentiary hearing that he then

asked Defendant if drinking socially was a bad thing, and

Defendant brought the issue up by stating “[i]f you get two

DUIs, it is. Something to that effect.” As to Defendant’s

response, Mr. Bateh specifically reasoned that, from his

vantage point during trial, “[t]he door was opened when Mr.

Ruise answered the way he did. The question I asked for was

asking - was asking for a yes or no answer and it should have

been, Is that life style a bad life style? It should have been no,

as we discussed. Again, that answer opened the door.” Most

importantly, Defendant conceded during the evidentiary

hearing that he brought up the issue of DUIs first.

As such, this Court finds the trial record shows

Defendant volunteered the fact he had DUI convictions.

Further, this Court finds credence in Mr. Bateh’s testimony

describing how he prepared Defendant to testify, and how Mr.

Bateh advised Defendant to not elaborate on the nature of his

prior felony convictions. As Mr. Bateh testified, and the record

reflects, Defendant himself opened the door to the State’s

questions regarding Defendant’s felony and misdemeanor

convictions for DUI. Accordingly, this Court finds because

Defendant’s counsel did not open the door to the information

at issue, counsel did not render deficient performance under

Strickland. Ground Three is denied.

Resp. Ex. C2 at 287-89 (record citations omitted). The First DCA affirmed the denial of

this claim without a written opinion. Resp. Exs. C8; C9.

To the extent that the First DCA decided the claim on the merits, the Court will

address the claim in accordance with the deferential standard for federal court review of

state court adjudications. After a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to clearly

established federal law, did not involve an unreasonable application of clearly established

federal law, and was not based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceedings. Thus, Ruise is not entitled to relief

on the basis of this claim.

Nevertheless, even if the First DCA’s adjudication of this claim is not entitled to

deference, the claim in Ground Three is without merit. The record reflects that during

Ruise’s direct examination at trial, his counsel asked him if he had been convicted of two

felonies, to which Ruise responded in the affirmative. Resp. Ex. B5 at 332. On his own

initiative, Ruise asked, “[d]id you want me to elaborate?”, with his counsel stating, “[n]o,

that’s all right” and switching topics. Id. Several questions later, counsel asked Ruise

about his lifestyle at the time of the incident. Id. at 334. Ruise testified he consumed

alcohol. Id. When counsel asked, “Okay. That’s not a bad thing; is it?” Ruise replied, “It is

when, you know, you get DUI’s and things.” Id. At this point, counsel then asked Ruise if

he had gotten DUIs and if those were the two felony convictions they had previously

mentioned. Id. at 334-35. After Ruise responded affirmatively, counsel moved on from the

subject. Id. at 335. On cross-examination, the prosecutor inquired about Ruise’s prior two

DUI convictions by pointing out that his two DUI felony convictions were based on two

other misdemeanor DUI convictions. Id. at 350-51. A point counsel clarified on redirect.

Id. at 374. At the evidentiary hearing, Michael Bateh, Ruise’s attorney, testified that prior

to trial he advised Ruise that he would only ask about the existence of prior felony

convictions, not the type, and warned Ruise about not mentioning his DUIs. Resp. Ex. C4

at 75-76. Notably, Ruise testified at the hearing that Bateh told him the State could not

bring up the nature of his prior felony convictions if he answered truthfully. Id. at 103-04.

Based on this record, the Court finds Ruise opened the door by implying he had

previous DUI convictions after his counsel told him not to elaborate. As such, it was not

counsel’s deficiencies that opened the door, but Ruise’s own answer to an otherwise

innocuous question counsel asked. Counsel’s further inquiry into the matter represented

damage control. Accordingly, Ruise has failed to demonstrate deficient performance.

Moreover, the Court finds Ruise has not shown a reasonable probability the

outcome of the trial would have been different had Ruise not brought up his DUI

convictions. At trial, the victim detailed a sexual battery, Resp. Ex. B4 at 49-59, with

Ruise’s semen found inside the victim’s vagina. Id. at 119-22, 137, 150, 168-71, 193-96.

Most damning of all, however, was Ruise’s constantly changing story. As mentioned

above in the analysis of Ground One, Ruise gave three varying stories of what occurred,

from full denial to consensual sex. Ruise’s differing explanations of what occurred

severely hurt his credibility and his defense. So much so that the Court finds Ruise would

have still been convicted had the jury not heard of his prior misdemeanor DUI convictions.

In light of the above analysis, Ruise is not entitled to the relief he seeks in Ground Three.

F. Ground Four

Ruise argues that his counsel was ineffective for failing to object and move for a

mistrial after the State introduced evidence of collateral crimes, specifically evidence of

Ruise’s suspended license at the time of the incident. Petition at 16-17. At trial, Ruise

testified that he drove home from work the day of the incident and stopped on the side of

the road and picked up the victim, who he claimed was a prostitute. Id. In rebuttal, the

State introduced the testimony of Detective David Humphrey who testified that Ruise’s

driver’s license was suspended on the date of the incident. Id. According to Ruise, the

State failed to disclose Humphrey as a witness and never asked Ruise during cross-

examination if his license was suspended. Id. As such, Ruise now contends that counsel

should have objected based on the failure to disclose, improper impeachment, and

improper admission of collateral crimes evidence. Id.

Ruise raised this claim in his Rule 3.850 Motion. Resp. Ex. C1 at 23-26. In denying

this claim, the circuit court explained:

As to the merits of Defendant’s claim, the record shows

the State called Detective Humphrey as a witness. The

Detective testified that, on either January 20, 2006, or January

21, 2006, Defendant’s driver’s license was suspended.

The record shows Defendant opened the door to the

introduction of this collateral evidence. Defendant testified he

was driving home from work when he met the victim. During

trial, the State questioned Defendant about a letter he wrote

to the trial judge and how he indicated he was driving home

from a night of partying when he met the victim. Mr. Bateh

similarly recalled that, prior to trial, Defendant had written the

trial judge a letter in which Defendant stated on the night in

question, he was driving home from partying. Defendant also

recalled his letter to the trial judge.

During the evidentiary hearing, Mr. Bateh opined that,

had Defendant not testified on his own behalf during trial, his

pro se letter would not have been admissible. Most

importantly, Mr. Bateh explained, he would not have objected

to Detective Humphrey’s testimony if it involved only an

impeachment issue, because such an issue is not

objectionable.

This Court finds Defendant’s own contradictory stories

about driving on the night of the incident, coupled with the fact

that Defendant had a suspended driver’s license at that time,

opened the door to proper impeachment by the State. The

State properly impeached Defendant’s credibility with

evidence from Detective Humphrey showing Defendant

should not have been driving on the night in question due to

his suspended license. Further, this Court finds Mr. Bateh’s

explanation for not objecting constituted sound judgment by a

seasoned defense attorney. As such, this Court finds the

State’s impeachment was not so egregious to have warranted

a non-meritorious objection or a motion for mistrial.

Resp. Ex. C2 at 290-91 (record citations omitted). The First DCA affirmed the denial of

this claim without a written opinion. Resp. Exs. C8; C9.

To the extent that the First DCA decided the claim on the merits, the Court will

address the claim in accordance with the deferential standard for federal court review of

state court adjudications. After a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to clearly

established federal law, did not involve an unreasonable application of clearly established

federal law, and was not based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceedings. Thus, Ruise is not entitled to relief

on the basis of this claim.

Nevertheless, even if the state appellate court’s adjudication of this claim is not

entitled to deference, the claim here is meritless. In Florida, a party may impeach a

witness with “[p]roof by other witnesses that material facts are not as testified to by the

witness being impeached.” § 90.608, Fla. Stat. At the trial here, Ruise testified that he

was driving home from work the night of the incident and that he invited the victim, who

he claimed was a prostitute, into his car and drove them to his apartment. Resp. Ex. B5

at 338-40. The victim, however, testified that she was walking and the man who raped

her was walking behind her for some time prior to attacking her. Resp. Ex. B4 at 46-59.

Accordingly, the State properly introduced evidence that Ruise’s license had been

suspended to rebut his testimony that he was driving that night. As such, there would

have been no basis for counsel to object. See §§ 90.608 Fla. Stat. Accordingly, Ruise’s

claim of deficiency fails. See Diaz, 402 F.3d at 1142; Bolender, 16 F.3d at 1573.

Moreover, the Court finds Ruise cannot demonstrate prejudice, because the introduction

of Ruise’s various statements that contradicted his trial testimony had already significantly

impugned his credibility. Therefore, even without this rebuttal evidence, there is no

reasonable probability the outcome of the trial would have been different. Ruise has failed

to demonstrate deficient performance or prejudice, thus his claim in Ground Four is due

to be denied.

E. Ground Five

Ruise maintains that his trial counsel was ineffective for failing to object to improper

prosecutorial comments during closing arguments that misstated the evidence and

improperly bolstered the State’s case. Petition at 18-20. According to Ruise, the State

made several comments that were attempts to convince the jury to believe the victim’s

account of the rape over Ruise’s story, which he asserts “improperly bolstered the victim’s

credibility.” Id. at 19-20. Additionally, Ruise contends that the prosecutor misstated

evidence when she implored the jury to closely observe the bathing suit to see what she

contended was plant matter, grass, and dirt. Id. at 20. Ruise asserts that the evidence

presented at trial was “a swearing match between the parties” such that the prosecutor’s

comments unfairly and improperly bolstered the credibility of the victim, resulting in his

conviction.

As Ground Five of his Rule 3.850 Motion, Ruise raised essentially the same claim.

Resp. Ex. C1 at 26-31. The circuit court denied this claim, writing in part:

In the instant case, this Court finds the prosecutorial

arguments at issue, taken as a whole and placed in context,

were not improper, such to warrant objections from counsel.

Indeed, the prosecutor merely commented on the evidence

presented through witnesses’ testimony, and drew logical

inferences from said evidence. Placed in context, this Court

finds the arguments at issue were not egregious to warrant

objections from counsel, because the comments argued the

evidence to the jury. The arguments summarized the

evidence presented during trial, and offered a conclusion

based on the evidence. As such, because Defendant has

failed to demonstrate the comments were egregious, such to

warrant objections from counsel, counsel was not ineffective

for failing to object to them. As such, Ground Five is denied.

Resp. Ex. C2 at (record and case citations omitted). The First DCA affirmed the denial of

this claim without a written opinion. Resp. Exs. C8; C9.

To the extent that the First DCA decided the claim on the merits, the Court will

address the claim in accordance with the deferential standard for federal court review of

state court adjudications. After a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to clearly

established federal law, did not involve an unreasonable application of clearly established

federal law, and was not based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceedings. Thus, Ruise is not entitled to relief

on the basis of this claim.

Nevertheless, even if the state appellate court’s adjudication of this claim is not

entitled to deference, the claim in Ground Five is without merit. During closing arguments

“a prosecutor may ‘assist the jury in analyzing, evaluating, and applying the evidence’

and, therefore, may ‘urge[ ] the jury to draw inferences and conclusions from the evidence

produced at trial.” United States v. Adams, 339 F. App’x 883, 886 (11th Cir. 2008) (quoting

United States v. Johns, 734 F.2d 657, 663 (11th Cir.1984)). However, “[a] material

misstatement of fact in a closing argument is improper.” Ruiz v. Sec’y Fla. Dep’t of Corr.,

439 F. App’x 831, 834 (11th Cir. 2011) (citing Davis v. Zant, 36 F.3d 1538, 1548 n.15

(11th Cir. 1994)) (emphasis added). Furthermore,

A prosecutor commits improper vouching by “arguing

credibility based ... on evidence not before the jury,” United

States v. Eyster, 948 F.2d 1196, 1207 (11th Cir. 1991)

(quotation omitted), or by placing “the prestige of the

government behind the witness, by making explicit personal

assurances of the witness' veracity,” United States v. Epps,

613 F.3d 1093, 1100 (11th Cir. 2010) (quotation omitted).

United States v. Gonzalez, 834 F.3d 1206, 1226 (11th Cir. 2016).

Concerning alleged bolstering, having reviewed the comments listed as allegedly

improper in Ruise’s Petition, the Court finds the prosecutor did not improperly bolster the

victim’s testimony. Instead, the prosecutor made arguments in support of the victim’s

credibility based on her testimony and demeanor at trial in light of the other evidence

presented. Resp. Ex. B6 at 404, 406-07, 412, 445. None of these arguments are based

on evidence not presented to the jury and the State never made any explicit personal

assurances of the victim’s veracity; therefore, the prosecutor did not improperly bolster

the victim’s testimony. See Gonzalez, 834 F.3d at 1226.

Regarding Ruise’s allegation the prosecutor argued facts not in evidence, the

Court disagrees. The record reflects that Choulat testified she instructed the victim to

undress over two pieces of paper, which collected any foreign materials. Resp. Ex. B4 at

140, 152. After examining the victim’s clothes, Choulat rolled the clothes up tightly in the

paper, included it in the rape kit, and secured it until the Florida Department of Law

Enforcement retrieved it. Id. 126-29, 140, 152-53. The State introduced the rape kit along

with the paper and clothes into evidence. Id. Referring to her report, Choulat testified that

the clothing was not torn, she did not see stains, and she “didn’t see significant foreign

material.” Id. at 140-41. Notably, Choulat stated that her report reflected that the victim

had soil underneath her fingertips, consistent with the victim’s account that she was raped

on a grass or dirt area. Id. at 118.

During closing arguments, the prosecutor stated the following:

And one of the things you might also want to

remember, ladies and gentlemen, is that Ms. Choulat told you

that when they undress, they undress on that paper and then

the clothes are wrapped up in that paper so that everything

that was on them is all contained, it’s all in there.

Well, I submit you need to look at this bathing suit,

because that looks like plant matter to me. That looks like

grass and dirt to me. It looks like little pieces of grass, because

ladies and gentlemen, in the early morning hours of January

21st of 2006, this defendant found his opportunity in [the

victim] and forced her to have sex against her will and

threatened her with violence and with a knife if she resisted

him, and we ask that you find the only reasonable verdict in

this case, and that is guilty.

Resp. Ex. B6 at 446. It is apparent from these comments that the prosecutor was making

an inference from evidence introduced at trial. The prosecutor’s contention was that the

swimsuit had grass stains and she implored the jury to look for themselves. These

comments are not contrary to the evidence and, in fact, rely entirely on the prosecutor’s

personal observations of a physical piece of evidence that the jury could likewise examine

during deliberations. Choulat’s testimony that she did not observe “significant foreign

material” does not forestall the possibility of the existence of a small or slight amount of

foreign material present on the swimsuit from which the prosecutor could make this

argument. As such, the Court finds the prosecutor did not comment on evidence not

presented to the jury.

Having concluded none of these comments were improper, the Court finds any

objection to these comments would have been meritless. An attorney cannot be deemed

deficient for failing to raise meritless objections. See Diaz, 402 F.3d at 1142; Bolender,

16 F.3d at 1573. Based on the above analysis, Ruise’s claim in Ground Five is due to be

denied.

F. Ground Six

In Ground Six, Ruise argues that his trial counsel was ineffective for failing to object

to an erroneous jury instruction for the crime of sexual battery upon a person twelve years

of age or older. Petition at 22-24. According to Ruise, to convict him of this offense, the

State was required to prove the following four elements: (1) the victim was twelve years

of age or older; (2) Ruise’s sexual organ penetrated or had union with the victim’s vagina;

(3) Ruise coerced the victim to submit by threatening to use force or violence likely to

cause serious personal injury and the victim reasonably believed Ruise had the present

ability to execute the threat; and (4) the victim did not consent. Id. at 22. However, at trial,

the circuit court instructed the jury that the State had to prove three elements, excluding

the third element listed above. Id. The circuit court ultimately instructed the jury on this

third element by stating, “if you find the defendant guilty of sexual battery, you must make

a further finding,” which was the third element. Id. at 23. Although advised of this element,

Ruise contends that the instruction given was a misstatement of the law and confused

the jury, because it led the jury to believe that they only had to find three elements to find

Ruise guilty. Id. Ruise asserts that he was not charged with basic sexual battery;

therefore, this instruction was erroneous, and counsel should have objected. Id.

Ruise raised a similar claim in his Rule 3.850 Motion. Resp. Ex. C1 at 31-37.

Following an evidentiary hearing, the circuit court denied this claim, the circuit court

explained:

Here, upon review of the elements of the standard Sexual

Battery jury instruction, compared with the instruction and

verdict form the jurors received, this Court finds the jurors

received the same four elements the State was required to

prove, written and fashioned in a different order.

Further, during the evidentiary hearing, Mr. Bateh

testified at length as to this ground for relief. Mr. Bateh

asserted he agreed to the jury instruction given because, with

the way the verdict form was fashioned, it framed a fourth

element, “Sexual Battery with Force/Threat,” as an

aggravating circumstance to the lesser-included offense of

Sexual Battery. Therefore, Mr. Bateh explained, he and his

co-counsel were hopeful the jurors would find Defendant not

guilty because of the manner in which the instruction read, or

guilty of only Sexual Battery without the aggravating

circumstance. Mr. Bateh further explained that the jury

instruction, as it was fashioned, supported Defendant’s

defense. Mr. Bateh stated, in his opinion, the verdict form and

jury instructions did not mischaracterize the elements in which

the State had to prove. Mr. Bateh characterized his action in

seeking the Sexual Battery jury instructions, as presented to

the jury, as a strategic decision.

Defendant testified during the evidentiary hearing that

Mr. Bateh gave him a copy of the jury instructions to review.

Defendant asserted he informed Mr. Bateh the third element

was omitted from the jury instruction, and he needed to tell the

trial judge the instruction was incorrect. Defendant testified

Mr. Bateh never told him the jury instruction was fashioned as

part of his trial strategy, and Defendant did not agree with the

instruction.

Based on the foregoing, this Court finds Mr. Bateh

acted pursuant to trial strategy by agreeing to fashion the jury

instruction as he did for Defendant’s benefit. Specifically, with

the instruction, Mr. Bateh sought to obtain a not guilty verdict

or a conviction for the lesser-included offense of Sexual

Battery.

Further, assuming arguendo Defendant could

establish deficient performance, he has failed to establish

prejudice, specifically that the result of his trial would have

been different had counsel objected and the trial judge had

provided Standard Instruction 11.3 to the jurors. In this

respect, this Court finds harmless error occurred, which did

not change the result of Defendant’s trial. See Hipp v. State,

650 So. 2d 91, 93 (Fla. 4th DCA 1995). Specifically, through

the way the trial judge read the instruction to the jury, the

failure to make the further finding would have resulted in

Defendant being found guilty of the necessarily lesser-

included offense of Sexual Battery. As such, Ground Six is

denied.

Resp. Ex. C2 at 294-97 (record citations omitted). The First DCA affirmed the denial of

this claim without a written opinion. Resp. Exs. C8; C9.

To the extent that the First DCA decided the claim on the merits, the Court will

address the claim in accordance with the deferential standard for federal court review of

state court adjudications. After a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to clearly

established federal law, did not involve an unreasonable application of clearly established

federal law, and was not based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceedings. Thus, Ruise is not entitled to relief

on the basis of this claim.

Even if the First DCA’s adjudication of this claim is not entitled to deference, this

claim fails. Here, the State charged Ruise with sexual battery pursuant to section

794.011(4)(b), Florida Statutes, and alleged in the body of the information that Ruise

coerced the victim “to submit by threatening to use force or violence likely to cause serious

personal injury to [the victim], who reasonably believed that [Ruise] had the present ability

to execute such threats.” Resp. Ex. B1 at 13. Pursuant to section 794.011(4)(b), “[a]

person 18 years of age or older who commits sexual battery upon a person 18 years of

age or older without that person's consent, under any of the circumstances listed in

paragraph (e), commits a felony of the first degree.” Among the circumstances listed in

paragraph (e) of the statute is when “[t]he offender coerces the victim to submit by

threatening to use force or violence likely to cause serious personal injury on the victim,

and the victim reasonably believes that the offender has the present ability to execute the

threat.” § 794.011(4)(e)2., Fla. Stat.

During the charge conference at Ruise’s trial, counsel did not object to the jury

instruction in question. Resp. Ex. B5 at 327-29, 387-90. Ultimately, the circuit court

instructed the jury as follows:

SEXUAL BATTERY UPON A PERSON TWELVE YEARS

OF AGE OR OLDER

To prove the crime of Sexual Battery Upon a Person

Twelve Years of Age or Older, the State must prove the

following three elements beyond a reasonable doubt:

1. [The victim] was twelve years of age or

older.

2. ANTHONY LEE RUISE committed an act

upon [the victim] in which the sexual

organ of ANTHONY LEE RUISE

penetrated or had union with the vagina

of [the victim].

3. The act was done without the consent of

[the victim].

“Consent” means intelligent, knowing, and voluntary

consent and does not include coerced submission. Consent

does not mean the failure by the alleged victim to offer

physical resistance to the offender.

If you find the defendant guilty of Sexual Battery, you

must make a further finding of whether, at the time of the

offense, the defendant coerced the victim to submit by

threatening to use force or violence, likely to cause serious

personal injury and that the victim reasonably believed that

the defendant had the ability to execute the threat.

Resp. Ex. B3 at 365.

At the evidentiary hearing on this claim, Ruise’s counsel, Bateh, testified that he

reviewed the jury instructions with Ruise prior to trial. Resp. Ex. C4 at 82. Bateh stated

he was aware at the time of trial that the State was required to prove four elements. Id. at

84. He was also aware that this jury instruction was not written in the same manner as

the standard jury instruction. Id. at 100. However, Bateh testified he did not object

because, from a strategic point of view, he felt the way the instruction was written helped

their defense theory that the sex was consensual or, at worse, no force was involved.

According to Bateh, he was “trying to mitigate anything that the jury would look at,” id. at

83, such that they hoped to keep this specific element as an aggravator to allow the jury

to find Ruise guilty of simple sexual battery, a necessary lesser-included offense. Id. at

83-84, 99-100. The circuit court determined Bateh’s testimony was credible and that he

made a reasonable strategic decision. Resp. Ex. C2 at 294-97. Ruise has failed to present

clear and convincing evidence rebutting the circuit court’s factual findings on this issue;

therefore, the Court presumes these factual findings are correct. See 28 U.S.C. §

2254(e)(1). The Court further finds that counsel’s strategy was reasonable given Ruise’s

testimony that the sex was consensual and the fact that although the instruction was

worded differently it ultimately included each of the four elements of the charged offense.

This latter point further demonstrates that no prejudice occurred even if counsel was

deficient, because the jury was still tasked with determining each element of sexual

battery through physical coercion. Accordingly, Ruise has failed to demonstrate deficient

performance or prejudice; therefore, the relief he seeks in Ground Six is due to be denied.

G. Ground Seven

Ruise contends that his trial counsel was ineffective for failing to investigate and

call the victim’s best friend, Kia Stewart, as a witness at trial. Petition at 25. According to

Ruise, he requested his counsel call Stewart as a witness to refute the victim’s testimony

that Stewart was present with her at a restaurant prior to the sexual battery occurring. Id.

Ruise maintains that Stewart would have testified she did not go to the restaurant that

night. Id. Ruise asserts that Stewart’s testimony would have provided further

impeachment evidence against the victim. Id.

Ruise raised this claim in his Rule 3.850 Motion. Resp. Ex. C1 at 37-39. In denying

this claim, the circuit court explained:

This Court finds the record refutes Defendant’s instant

claim. Specifically, he testified under oath that, other than

possibly himself, he understood counsel would not be calling

any other individuals as Defense witnesses during trial.

Defendant further testified he and counsel spoke about

locating, interviewing, listing, or calling other witnesses than

himself, and counsel explained to Defendant’s satisfaction

why the witnesses would not be called. Indeed, Defendant

affirmed to the trial judge that, after speaking with counsel,

there were no other witnesses he believed should be called

during the Defense case.

Further, after the close of the Defense case-in-chief,

the trial judge asked Defendant if he wanted his attorneys to

introduce any further evidence, and Defendant stated he did

not. Finally, while the jurors deliberated, the trial judge asked

Defendant if he was pleased with the way his attorneys tried

the case, and Defendant affirmed he was satisfied with

counsels’ representation of him. During the evidentiary

hearing, Defendant affirmed he had offered sworn testimony

during trial in which he specifically indicated to the trial judge

he was satisfied with counsels’ representation of him.

This Court finds Defendant may not seek to go behind

his previous sworn testimony, and now allege counsel was

ineffective for failing to call an additional witness during trial.

Finally, Defendant’s assertion that he suffered prejudice fails

because, as discussed supra in Ground One, trial counsel

exhaustively attacked the victim’s credibility. As such, Ground

Seven is denied.

Resp. Ex. C2 at 298 (record citations omitted). The First DCA affirmed the denial of this

claim without a written opinion. Resp. Exs. C8; C9.

To the extent that the First DCA decided the claim on the merits, the Court will

address the claim in accordance with the deferential standard for federal court review of

state court adjudications. After a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to clearly

established federal law, did not involve an unreasonable application of clearly established

federal law, and was not based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceedings. Thus, Ruise is not entitled to relief

on the basis of this claim.

Nonetheless, even if the First DCA’s adjudication of this claim is not entitled to

deference, the claim here is meritless. The United States Supreme Court has noted that

“[s]olemn declarations in open court carry a strong presumption of verity.” Blackledge v.

Allison, 431 U.S. 63, 74 (1977); see also Kelley v. State, 109 So. 3d 811, 812-13 (Fla. 1st

DCA 2013) (holding a court may deny postconviction relief on claims that are refuted by

sworn representations the defendant made to the trial court). During a colloquy with the

circuit court, Ruise stated, under oath, that there were no other witnesses or evidence

that he wanted his counsel to present. Resp. Ex. B5 at 387-88. As such, Ruise is now

estopped from arguing his counsel was ineffective for failing to call a witness. See

Blackledge, 431 U.S. at 74; Kelley, 109 So. 3d at 812-13. Moreover, given how much

counsel had already impeached the victim at trial, Resp. Ex. B4 at 69-92, the Court finds

there is no reasonable probability the outcome of the trial would have been different had

counsel been able to impeach the victim with this single piece of evidence. As noted

above, Ruise’s own credibility was severely impugned due to his own varying and

contradicting explanations for what occurred that night, so much so that the trial would

not have had a different outcome had Stewart testified. For the above stated reasons, the

claim in Ground Seven is due to be denied.

H. Ground Eight

Finally, in his last ground, Ruise asserts that the cumulative effect of his trial

counsel’s deficient performance prejudiced him. Petition at 27. The Court notes that

where all individual claims of ineffective assistance of counsel are meritless, the claim of

cumulative error is also without merit. Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132

(11th Cir. 2012). Here, the Court has found each of the preceding seven grounds for relief

to be meritless; therefore, Ruise’s claim of cumulative error is due to be denied. See id.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Ruise seeks issuance of a certificate of appealability, the undersigned opines

that a certificate of appealability is not warranted. The Court should issue a certificate of

appealability only if the petitioner makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make this substantial showing, Ruise

“must demonstrate that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282

(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues

presented were ‘adequate to deserve encouragement to proceed further,’” Miller-El v.

Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4

(1983)).

Where a district court has rejected a petitioner’s constitutional claims on the merits,

the petitioner must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong. See Slack, 529 U.S. at 484.

However, when the district court has rejected a claim on procedural grounds, the

petitioner must show that “jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.” Id. Upon

consideration of the record as a whole, the Court will deny a certificate of appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED WITH

PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Petition and

dismissing this case with prejudice.

3. If Ruise appeals the denial of the Petition, the Court denies a certificate of

appealability. Because the Court has determined that a certificate of appealability is not

warranted, the Clerk shall terminate from the pending motions report any motion to

proceed on appeal as a pauper that may be filed in this case. Such termination shall serve

as a denial of the motion.

4. The Clerk of the Court is directed to close this case and terminate any

pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 23rd day of October, 2019.

United States District Judge

Jax-8

C: counsel of record

Anthony Ruise

39